mrsbuttonpusher
recently joined
Reged: 04/19/11
Posts: 4
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We split up in 06/10. I am permaently disabled (SSDI) and He only got paid to take care of me for 6 mon. last year by IHSS. He says that he filed head of household. not using my income. only his Ihss pay and I guess the welfare money he gets since July last year. I didn't have to file, He has custody of our 3 kids. Ipay him C.S. And he still doesn't work.
What are my rights about that refund ,if any? I live in CA.
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Goodmom
Pooh-Bah
Reged: 06/17/07
Posts: 2018
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You can bring up the refund during the settlement negotiations.
When you say you are paying child support, are you talking about the dependent care that you get from SSDI for having minor children? Or are you talking about an amount above that? If you are, you need to discuss getting that portion stopped with your attorney as the dependent care portion is typically in place of child support. And I would definitely discuss having income imputed to him.
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Avaya
Carpal \'Tunnel
Reged: 02/09/06
Posts: 9823
Loc: Arkansas
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I see no rights to you for that refund. A) He filed HOH because he has custody of the children. Hence, nothing to do with you. B) He didn't claim you, therefore he didn't have to claim your income. IDK what IHSS is, but it doesn't matter WHY he got it, fact is it's his income and still, from IRS perspective, has nothing to do with you. C) You pay him CS, has no tax implications.
I see no reason that his income tax refund should affect you and no reason for it to be shared with you.
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Eternity is too long to be wrong.
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Goodmom
Pooh-Bah
Reged: 06/17/07
Posts: 2018
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Quote:
I see no reason that his income tax refund should affect you and no reason for it to be shared with you.
That's because you are ignoring the fact that they are still married and lived together at least half the year. Chances are, if the IRS did an audit, he may have filed incorrectly by filing HOH.
Either way, at least part of that refund will probably be considered joint given that they did live together at least half the year.
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Avaya
Carpal \'Tunnel
Reged: 02/09/06
Posts: 9823
Loc: Arkansas
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Um, no. He is HOH even though still married because he was separated from his wife for the last 6 months of 2010 and he supported the children that he claimed for all of 2010. Absolutely, considering the facts presented by the OP, under an audit, he would NOT have filed HOH incorrectly. He followed the IRS regs that define what is HOH and assuming what the OP said is true, he qualifies. I ignored nothing. I highly doubt the refund would be partially hers - he filed on his income claiming the children he supported with that income.
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Eternity is too long to be wrong.
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Goodmom
Pooh-Bah
Reged: 06/17/07
Posts: 2018
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Quote:
Um, no. He is HOH even though still married because he was separated from his wife for the last 6 months of 2010 and he supported the children that he claimed for all of 2010. Absolutely, considering the facts presented by the OP, under an audit, he would NOT have filed HOH incorrectly. He followed the IRS regs that define what is HOH and assuming what the OP said is true, he qualifies. I ignored nothing. I highly doubt the refund would be partially hers - he filed on his income claiming the children he supported with that income.
Thanks for clarifying. I wasn't sure if it was 6 months or had to be more than 6 months.
As I said, either way, they were married and living together for at least half the year. Doesn't matter if he used her income or not, some of that refund is joint. Doesn't matter if you agree with it or not, what matters is that they were living together for half the year. And what a family court will order. And a family court is going to take into consideration that they were living together half the year when determining what to do with the tax refund.
ETA: The year that my ex and I split, I wasn't working. Even though it was just his income on the tax return, the refund was still split between the two of us. Why? Because we had lived together during the year that the return was for.
Edited by Goodmom (04/20/11 05:51 PM)
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mrsbuttonpusher
recently joined
Reged: 04/19/11
Posts: 4
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Thanks very much for your replies. To clarify, most of the child support he gets is covered by my SSDI benefit but the court ordered over that ammount so I still have to pay out of pocket. That ammount is only like 12.00 a month and it goes to the state to pay back the welfare he gets to support our kids. I am pretty sure that he has already spent the refund that I am referring to but since our MSA has not been agreed on yet, I was hoping to use the tax refund as a bargaining chip in my favor for a few things that I know that he doesnt want me to have. We shall see what happens.
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Avaya
Carpal \'Tunnel
Reged: 02/09/06
Posts: 9823
Loc: Arkansas
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Quote:
ETA: The year that my ex and I split, I wasn't working. Even though it was just his income on the tax return, the refund was still split between the two of us. Why? Because we had lived together during the year that the return was for.
I imagine the refund was split because you filed jointly, not because you lived together during the year.
My stance isn't my opinion, it's what the IRS would rule. She wasn't a party to the tax return, he didn't claim her. The IRS would state that her income supported her and his income supported him and the children. She receives state/federal aid - they are not going to give her more than it would cost to support only herself - she said HE received $$ for the children.
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Eternity is too long to be wrong.
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Goodmom
Pooh-Bah
Reged: 06/17/07
Posts: 2018
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Quote:
Quote:
ETA: The year that my ex and I split, I wasn't working. Even though it was just his income on the tax return, the refund was still split between the two of us. Why? Because we had lived together during the year that the return was for.
I imagine the refund was split because you filed jointly, not because you lived together during the year.
My stance isn't my opinion, it's what the IRS would rule. She wasn't a party to the tax return, he didn't claim her. The IRS would state that her income supported her and his income supported him and the children. She receives state/federal aid - they are not going to give her more than it would cost to support only herself - she said HE received $$ for the children.
Your stance is your opinion. And, to be honest, in family court the only opinion that really matters is that of the judge hearing the case. And chances are very good, that while he filed within IRS guidelines, the refund will be considered a joint asset, either in its entirety or in proportion to the time that they lived together during the tax year. The IRS does not get to determine what is a joint asset in a divorce. Only a family court judge can do that.
All the IRS is going to do is give the money to the person whose name is on the tax return. And if a judge orders that person to hand over a portion of it and he doesn't, he's in contempt. Not from the IRS, as he followed the law there, but from family court, where he ignored the law.
Oh, and my case: Yes, we did file jointly. But had my ex filed without me, he would have still had to pay me a portion of any refund. And that comes directly from my family court attorney when I asked him about filing taxes. And the reason why it would have been treated as joint isn't because we filed jointly, but because we actually lived together for part of the year. Had we still been married at the end of the next tax year and filed separately, that would have not have been the case as we did not live together at any point of that tax year.
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Avaya
Carpal \'Tunnel
Reged: 02/09/06
Posts: 9823
Loc: Arkansas
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@@@@@@@@@@@@@@@@@@@
I disagree.
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Eternity is too long to be wrong.
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